Citation Nr: 0941781
Decision Date: 11/03/09 Archive Date: 11/09/09
DOCKET NO. 07-28 010 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for service connection for diabetes mellitus.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
J. Murray, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army
from January 1962 to January 1965.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office in Fort
Harrison, Montana (RO) which declined to reopen the Veteran's
claim for service connection for diabetes mellitus based on
the lack of new and material evidence. The Veteran has
perfected an appeal to this issue.
It is noted that the RO originally denied the Veteran's
original claim for service connection for diabetes mellitus
in a January 2003 rating decision, finding that the Veteran's
exposure to Agent Orange could not be verified and his
disability was not otherwise related to service. The Veteran
did not appeal and the January 2003 rating decision is the
last final decision of record.
In the August 2007 statement of the case, the RO reopened the
Veteran's claim for service connection for diabetes mellitus
but denied the claim on the merits. Notwithstanding the RO's
actions, it is incumbent on the Board to adjudicate the new
and material issue before considering the claim on its
merits. The question of whether new and material evidence
has been received is one that must be addressed by the Board,
notwithstanding a decision favorable to the appellant that
may have been rendered by the RO. See Barnett v. Brown, 83
F.3d 1380 (Fed. Cir. 1996) (before considering a previously
adjudicated claim, the Board must determine that new and
material evidence was presented or secured for the claim,
making RO determination in that regard irrelevant); see also
Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001)(the
Board has a jurisdictional responsibility to consider whether
it was proper for the RO to reopen a previously denied
claim). The Board has accordingly characterized the issue as
shown on the title page.
In August 2009, the Veteran testified before the undersigned
during a hearing held at the RO. A copy of the transcript
has been associated with the claims folder.
FINDINGS OF FACT
1. In a January 2003 rating decision, the RO denied service
connection for diabetes mellitus based upon the finding that
in-service exposure to Agent Orange could not be verified and
his disability was not otherwise related to service; the
Veteran did not appeal that decision.
2. None of the additional pertinent evidence received since
the January 2003 rating decision relates to an unestablished
fact (evidence of in-service exposure to Agent Orange or
evidence that shows his disability is otherwise related to
service) necessary to substantiate the claim, or raises a
reasonable possibility of substantiating that claim.
CONCLUSIONS OF LAW
1. The January 2003 rating decision that denied service
connection for diabetes mellitus became final. 38 U.S.C.A. §
7105(c) (West 2002); 38 C.F.R. § 20.1103 (2009).
2. New and material evidence to reopen service connection
for diabetes mellitus has not been received. 38 U.S.C.A.
§ 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs has
a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
VA is required to notify the claimant of the information and
evidence not of record that is necessary to substantiate the
claim. VA will inform the Veteran of the type of information
and evidence that VA will seek to provide, and of the type of
information and evidence, the claimant is expected to
provide. 38 C.F.R. § 3.159(b). VA must provide such notice
to the claimant prior to an initial unfavorable decision on a
claim for VA benefits by the agency of original jurisdiction
(AOJ), even if the adjudication occurred prior to the
enactment of the VCAA. See Pelegrini v. Principi, 18 Vet.
App. 112, 119-120 (2004). These VCAA notice requirements
apply to all elements of a claim for service connection, so
VA must specifically provide notice that a disability rating
and an effective date will be assigned if service connection
is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006).
In the context of a claim to reopen, in addition to the
general notice for the underlying service connection claim,
the VCAA requires that the Secretary look at the bases for
the denial in the prior decision and to provide the veteran
with a notice letter that describes what evidence would be
necessary to substantiate the unestablished element(s)
required to award service connection. Kent v. Nicholson, 20
Vet. App. 1, 9 (2006). The veteran must also be notified of
what constitutes both "new" and "material" evidence
pertaining to the unestablished element(s) in order to reopen
the previously denied claim. Id.
Here, prior to the March 2007 RO decision in the matter, VA
sent a letter to the Veteran in August 2006 that addressed
all notice elements concerning his claim to reopen a claim
for service connection for diabetes mellitus. The letter
informed the Veteran of what evidence is required to
substantiate the claim, to include the types of evidence
needed in order to substantiate his claim for service
connection, and apprised the Veteran as to his and VA's
respective duties for obtaining evidence. In addition, the
RO noted what evidence and information the Veteran was
required to provide, and what evidence and information that
VA was required to provide. The letter also advised the
Veteran of the basis for the previous denial of his claim,
and of what types of evidence constituted both "new" and
"material" evidence necessary to reopen the claim. In the
August 2006 notice letter, VA also informed the Veteran how
it determines the disability rating and the effective date
for the award of benefits if service connection is to be
awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The Board notes that the Veteran has submitted correspondence
which indicates his belief that VCAA must notify him of "the
existence of negative evidence and how to counter this
evidence." See, e.g., the July 2006 Statement in Support of
Claim. However, the United States Court of Appeals for the
Federal Circuit has specifically found that VCAA notice "may
be generic in the sense that it need not identify evidence
specific to the individual claimant's case (though it
necessarily must be tailored to the specific nature of the
veteran's claim)." See Wilson v. Mansfield, 506 F.3d 1055
(Fed. Cir. 2007) at 1062. The Court has further stated since
38 U.S.C.A. § 5103(a) "deals only with information and
evidence gathering prior to the initial adjudication of a
claim . . . it would be senseless to construe that statute as
imposing upon the Secretary a legal obligation to rule on the
probative value of information and evidence presented in
connection with a claim prior to rendering a decision on the
merits itself." See also Locklear v. Nicholson, 20 Vet.App.
410 at 415 (2006). Therefore, the contentions that the
Veteran should be provided notification as to the adequacy of
the evidence in his case is meritless.
In addition to its duty to notify, or inform, the Veteran
with regard to his claim for service connection for diabetes
mellitus, VA also has a duty to assist the Veteran in the
development of the claim. This duty includes assisting the
Veteran in the procurement of service treatment records and
records of pertinent medical treatment since service, and
providing the Veteran a medical examination when necessary.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In this case, VA has made reasonable efforts to obtain any
available pertinent records as well as all relevant records
adequately identified by the Veteran. Further, the RO has
made several attempts to verify the Veteran's alleged
inservice exposure to herbicide agents, including obtaining a
list from the Department of Defense on the Use, Testing, and
Storage of Dioxon Containing Herbicides outside Vietnam and
sending an inquiry to the U.S. Army and Joint Services
Records Research Center (JSRRC). See BVA Fast Letter 09-20
(May 6, 2009).
As to VA's duty to provide an examination, it only applies
when such an examination is necessary to decide a claim.
Here, VA did not provide the Veteran with an examination in
connection with his claim for diabetes mellitus; however, the
Board finds that an examination was not necessary to make a
decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West
2002).
VA has a duty to obtain a medical examination if the evidence
establishes: (1) a current disability or persistent or
recurrent symptoms of a disability; (2) an in-service event,
injury, or disease; and (3) the current disability may be
associated with the in-service event, but (4) there is
insufficient evidence to make a decision on the claim. See
McClendon v. Nicholson, 20 Vet. App. 79 (2006).
Under the McClendon analysis above, the Board does not find:
(2) that the evidence establishes that the Veteran was
exposed to Agent Orange during service; or (3) that the
evidence shows there is an indication that the current
disability may be otherwise associated with the Veteran's
service. There is no evidence showing that the Veteran was
exposed to Agent Orange during service. In regards to the
Veteran's assertions that his current condition is based on
secondary exposure to working near or working on aircrafts
that flew into Vietnam, there are no current medical studies
that show harmful health effects for any such secondary or
remote herbicide contact that may have occurred. The Veteran
also has not submitted any medical evidence that would
indicate a nexus based on secondary exposure. Additionally,
there is no evidence that shows that suggests that the
Veteran's disability is otherwise related to his service.
Accordingly, an examination at this time is not necessary.
See id.
The Veteran has not identified, and the record does not
otherwise indicate, any additional existing evidence that is
necessary for a fair adjudication of the claim that has not
been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993).
For the foregoing reasons, the Board therefore finds that VA
has satisfied its duty to notify and its duty to assist
pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West
2002 & Supp. 2009); 38 C.F.R. §§ 3.159(b), 20.1102 (2009);
Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183
(2002).
Application to Reopen the Claim Based on New and Material
Evidence
The Veteran seeks to reopen a claim of service connection for
diabetes mellitus. In July 2006, the Veteran initiated the
current claim on appeal. Specifically, the Veteran argued
that his diabetes mellitus was caused by in-service exposure
to Agent Orange while he was stationed in Thailand. In a
March 2007 rating decision, the RO declined to reopen the
claim because new and material evidence had not been
received.
The Veteran's claim for service connection was previously
denied by a rating decision in January 2003. In that rating
decision, RO denied the Veteran's claim because exposure to
Agent Orange could not be verified and his disability was not
otherwise related to service. The Veteran did not appeal,
and the January 2003 rating decision became final. See
38 C.F.R. §§ 20.302, 20.1103.
VA may reopen and review a claim that has been previously
denied if new and material evidence is submitted by or on
behalf of the Appellant. 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998). Before reaching the underlying claim of entitlement
to service connection, the Board must first determine whether
new and material evidence has been presented to establish its
jurisdiction to review the merits of the previously denied
claim. See Barnett, supra.
Under current VA law, "new" evidence is defined as evidence
that has not been previously submitted to the agency decision
makers; and "material" evidence is defined as evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. 38 C.F.R. § 3.156. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last final denial of
the claims sought to be reopened, and it must raise a
reasonable possibility of substantiating the claim. Id.
VA is required to first review the evidence submitted since
the last final disallowance of a claim on any basis for its
newness and materiality. See Evans v. Brown, 9 Vet. App. 273
(1996). The evidence received subsequent to the last final
decision in this case is presumed credible for the purposes
of reopening a claim unless it is inherently false or untrue,
or it is beyond the competence of the person making the
assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995).
Evidence of record at the time of the last final decision,
the January 2003 rating decision, consisted of the Veteran's
service treatment records and personnel records, a December
2002 private medical statement from Dr. M. N. and the
Veteran's statements.
The Veteran's service treatment records contain the report
from his November 1964 examination prior to separation. In
that report, the examiner evaluated the Veteran's endocrine
system as normal and urinalysis was negative. On an
associated medical history report, the Veteran did not
indicate any problems with sugar or albumin in his urine
during service or any other symptoms indicative of diabetes
mellitus.
A review of the Veteran's service personnel records shows
that he was stationed overseas in the United States Pacific
Command from September 1962 to March 1964 where his military
occupational specialty (MOS) was a supply clerk. The record
further shows the following: from September 21, 1962 to June
30, 1963 he was stationed in Okinawa (Naha and Kedana); from
July 1, 1963 to July 17, 1963 he travelled enroute to
Thailand; from July 18, 1963 to December 11, 1963 he was
stationed in Korat, Thailand; and from December 12, 1963 to
March 8, 1964 he returned and was stationed in Okinawa. At
the time of the last final decision, the record did not
contain any evidence that showed herbicide use (including
Agent Orange) in these locations during the specified
periods.
A December 2002 medical statement from Dr. M.N. indicates a
relationship between the Veteran's current diabetes mellitus
and in-service exposure to Agent Orange. This medical nexus
opinion appears to be based on the Veteran's subjective
history of herbicide exposure in service.
In January 2003, the RO denied the Veteran's claim because
the evidence failed to verify in-service exposure to Agent
Orange or that his disability was otherwise related to
service. As discussed above, that decision was final.
In order for the Board to now reopen the Veteran's claim for
service connection for diabetes mellitus, the Board must find
that new and material evidence received has been submitted
since the last final decision in January 2003.
To be "new", this evidence must not be redundant of that
which was already on file in 2003. To be "material", this
new evidence must relate to an unestablished fact necessary
to substantiate the claim. Here, evidence related to that
unestablished fact would be evidence which shows the Veteran
was exposed to Agent Orange during service or which shows his
disability is otherwise related to service. Essentially,
the additional evidence must at least indicate that the
Veteran was likely exposed to Agent Orange while stationed in
Thailand or Okinawa or that his disability is otherwise
related to service. Finally, this new and material evidence
must raise a reasonable possibility of substantiating the
claim. As explained below, the Board finds that no such
evidence has been received.
The evidence added to the claim file since the January 2003
rating decision, consists of the following: post-service
treatment from Dr. M.N. that show the Veteran was diagnosed
with onset adult diabetes mellitus in February 2001 and he
was subsequently treated for this condition; post-service
treatment records from VA Medical Center in Fort Harrison
from February 2002 to March 2009 that show treatment for
diabetes mellitus; several internet website articles that
indicate the use of herbicide agents in Thailand during the
Vietnam era, including history of Operation RANCH HAND; a
Department of Defense list of Use, Testing, and Storage of
Dioxon Containing Herbicides outside Vietnam; a Summary of
the use of Agent Orange in Operation Red Hat (Okinawa); a VA
memorandum on Herbicide Use in Thailand during the Vietnam
Era; a January 2008 RO memorandum indicating that Veteran's
exposure to Agent Orange in Thailand and Okinawa could not be
verified; a February 2008 response from JSRRC that the
Veteran's exposure to Agent Orange in Okinawa and Thailand
could not be verified; and the Veteran's statements and
testimony during the August 2009 hearing.
The additional post-service treatment records show that the
Veteran received treatment for diabetes mellitus. None of
the treatment records, however, contains a medical opinion
regarding the etiology of the Veteran's disability. Since
the additional treatment records only contain information
that was already of record prior to 2003, i.e., that the
Veteran has a current diagnosis of diabetes mellitus, these
records do not constitute material evidence to reopen the
claim. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993);
Mintz v. Brown, 6 Vet. App. 277, 280 (1994) (medical evidence
that merely documents continued diagnosis and treatment of
disease, without addressing the crucial matter of medical
nexus, does not constitute new and material evidence).
The additional records containing information about the use
of herbicides in Thailand and Okinawa are also insufficient
to reopen the Veteran's claim. A review of the records does
not show herbicide use, including Agent Orange, where the
Veteran was located in Thailand and Okinawa during the period
when he was stationed at those locations.
Specifically, the evidence indicates that the herbicides were
used in Thailand from 1964 to 1965 (with confirmed use from
April 2, 1964 to September 8, 1964). The Veteran was no
longer stationed in Thailand after December 1963. The
records pertaining to Operation Red Hat show herbicide agents
were stored and then later disposed in Okinawa from August
1969 to March 1972, several years after the Veteran returned
to the United States in March 1964.
The additional evidence also shows that a component of
Operation RANCH HAND (the primary units used to spray Agent
Orange throughout Vietnam) was employed in Thailand from
August 30, 1963 to September 16, 1963. During this period
the unit was deployed to Thailand in order to spray crops
with insecticides used to control malaria-carrying
mosquitoes. None of these scheduled sprays was used to
release herbicide agents.
The VA memorandum on Herbicide Use in Thailand showed that
there was sporadic non-tactical (commercial) herbicide use
within fenced perimeters of Thailand bases. The memorandum
further showed that in order for a veteran to be exposed to
these herbicides, he would need to be in contact with the
base perimeter and that such exposure would have required a
veteran to walk the perimeter of bases, a duty likely
attributed to security police. Here, the Veteran's MOS was a
supply clerk and his duties therefore did not likely entail
walking the base perimeter.
Accordingly, the additional evidence concerning information
on herbicide use in Thailand and Okinawa, though new, is not
material, since it is against the claim.
See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence
that is unfavorable to a claimant is not new and material).
The Veteran's testimony during the August 2009 Travel Board
hearing does not provide any new evidence to reopen the claim
for service connection. The Veteran testified that he was
stationed in Thailand during service and that while he was
stationed in Thailand, he came into contact with helicopters
and monies that had previously been in Vietnam. This
testimony is merely cumulative of the other evidence of
record contained in statements from the Veteran (see, e.g.,
the Veteran's November 2001 and June 2002 statements) and
cannot reopen the claim. See Reid v. Derwinski, 2 Vet. App.
312, 315 (1992).
Further, the Veteran's additional assertions that his
exposure to Agent Orange was secondary to working near or on
aircrafts that flew into Vietnam or handled equipment or
monies from Vietnam are not sufficient to reopen the claim.
Although the Veteran is competent to attest to facts
surrounding his claim, as a lay person, he is not competent
to offer opinions that require medical knowledge. Espiritu
v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Indeed, in
Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that
laypersons are not competent to offer medical opinions and
that such evidence does not provide a basis on which to
reopen a claim for service connection. In Routen v. Brown,
10 Vet. App. 183, 186, (1997), the Court noted "[l]ay
assertions of medical causation . . . cannot suffice to
reopen a claim under 38 U.S.C.A. 5108." The Veteran's
assertions cannot reopen the claim.
After a careful review of the claim file, the Board finds
that since the last final decision in January 2003, no new
and material evidence has been received to reopen the
Veteran's claim. The newly received evidence in this case
does not pertain to the unestablished fact (evidence of
inservice exposure to Agent Orange) necessary to establish
this claim. The additional treatment records only show that
the Veteran continued to seek treatment for diabetes mellitus
and the record does not indicate an etiology for his
disability or provide a medical nexus statement. To the
extent that the evidence pertaining to herbicide use in
Okinawa and Thailand added since 2003 addresses the
unestablished fact necessary to substantiate the claim
(evidence of inservice exposure to Agent Orange), the
additional evidence only provides general information
regarding herbicide use in those locations and does not
provide VA with specific information necessary to verify the
Veteran's claimed inservice exposure. This additional
evidence does not raise a reasonable possibility of
substantiating the claim.
Based on the foregoing, the Board finds that new and material
evidence has not been received and the matter may not be
reopened. See 38 C.F.R. § 3.156.
ORDER
New and material evidence not having been received, the claim
of service connection for diabetes mellitus is not reopened,
and service connection remains denied.
______________________________________________
S. BUSH
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs